State of New Jersey v. Ismael Lorenzo ( 2024 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0155-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ISMAEL LORENZO, a/k/a
ISMAEL LORENZO, JR.,
JOEL LORENZO, and
ISAMEL LORENZO,
Defendant-Appellant.
_______________________
Submitted March 20, 2024 – Decided July 2, 2024
Before Judges Currier and Vanek.
On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Indictment No. 20-02-0155.
Jennifer Nicole Sellitti, Public Defender, attorney for
appellant (Stefan Van Jura, Assistant Deputy Public
Defender, of counsel and on the brief).
Robert J. Carroll, Morris County Prosecutor, attorney
for respondent (Tiffany M. Russo, Assistant
Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
After representing himself at trial with stand-by counsel, defendant was
convicted of third-degree possession with intent to distribute a controlled
dangerous substance (CDS), N.J.S.A. 2C:35-5(a)(1) and (b)(11); third-degree
financial facilitation of criminal activity, N.J.S.A. 2C:21-25(a); second-degree
unlawful possession of a weapon while committing a CDS offense, N.J.S.A.
2C:39-4.1(a); and second-degree certain persons not to have weapons, N.J.S.A.
2C:39-7(b)(1). After reviewing the contentions raised by counsel and defendant
in a supplemental brief, in light of the facts and applicable principles of law, we
affirm the convictions. However, because there is a discrepancy between the
oral sentence imposed by the court and the sentence reflected in the Judgment
of Conviction (JOC), we remand for the court to clarify its sentence and amend
the JOC if necessary.
I.
Defendant was charged in an indictment with one count of fourth-degree
possession of a (CDS) (count one); one count of third-degree possession with
intent to distribute a CDS (count two); one count of third-degree financial
facilitation of criminal activity (count three); one count of second-degree
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unlawful possession of a weapon while committing a CDS offense (count four);
and one count of second-degree certain persons not to have weapons (count
five).
We derive the facts from the evidence presented during hearings on
numerous pre-trial motions and at the July 2022 trial.
A.
After several anonymous tips, law enforcement used a confidential
informant (CI) to complete several controlled purchases of CDS from defendant.
The CI bought marijuana from defendant on two occasions in November 2019.
There were law enforcement officers present at the time. After each purchase,
the CI turned over the suspected marijuana to the police, who logged it and
stored it in a temporary evidence locker.
Thereafter, the court issued a knock and announce search warrant for
defendant's premises. Investigators determined defendant's family resided in the
main living area of a house and defendant lived in the basement, which was
separately accessible.
Representatives of the Sheriff's Emergency Response Team (SERT)
testified regarding their execution of the search warrant. The court and the jury
also reviewed two security videos of the search. A SERT member explained he
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was the breacher, responsible for "facilitat[ing] the opening" of the entry point —
the door. Another individual was responsible for knocking on the door. The
SERT member stated the "knocker" knocked on the door, and "[r]oughly [thirty]
seconds" later, when there was no response, he was instructed to breach the door.
A separate individual timed the interval after the knock. The SERT member
viewed the security camera footage and stated it accurately depicted the
approximately thirty seconds between the knock and announce and breach.
The SERT member testified the officers knocked and announced at "[t]he
main breach point to the residence, the outside entry door." The security camera
footage showed SERT arriving at the door at 5:59:01 a.m. and breaching the
door at 5:59:31 a.m.
The officers accessed defendant's apartment through the rear basement
door of the main residence. Detective Michael McMahon of the K-9 section of
the Morris County Sheriff's Office testified he entered defendant's residence
with his dog, Kai, and walked through each room. Kai's narcotics sniff resulted
in five indications that led to the discovery of marijuana and paraphernalia: two
indications on a chair and sofa in the living room, two indications on shelves in
the closet, and one indication in a ceiling vent. During the search of the chair
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in the living room, officers discovered a loaded handgun. In subsequent testing,
defendant's fingerprints were not found on the gun, magazine, or bullets.
Detective Supervisor Jimmy Atoche, in the Special Enforcement Unit of
the Special Operations Division of the Morris County Prosecutor's office,
testified that the door to the basement had a deadbolt, aftermarket brackets, and
looked like it was fortified by a two-by-four piece of wood. Atoche stated the
search of defendant's bedroom revealed green vegetative matter,1 approximately
twenty-one small Ziplock baggies inside a leather digital scale pouch, a scale
described as often used in gram-sized weights, a cell phone, and a New Jersey
vehicle registration renewal form bearing defendant's name.
A search of defendant's closet uncovered three stacks of money in rubber
bands totaling $2,910 and a box with seven plastic baggies containing green
vegetation. Atoche stated he noticed "a patchy paint job/sheetrock job" with a
hole in the wall and peeled it back to find two cell phone boxes and a portable
speaker box. One cell phone box had "10K" written on it and contained $10,000
in rubber-banded stacks of bills. A second cell phone box had "10K" written on
1
This term was used by the court when law enforcement suspected the substance
was marijuana.
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it and contained $9,900 in rubber-banded stacks of bills. The portable speaker
box was larger and contained $20,000 in rubber-banded stacks of bills.
Near the second bedroom, there was an access panel that had been taken
off the wall before the breach. In the panel, Atoche found green vegetation in a
"standard sandwich Ziploc baggie" that was "full all the way."
A narcotics task force officer testified he searched behind a television in
defendant's apartment and found two boxes of sandwich bags, a silver container
containing eight individual sandwich bags of green vegetation, and "some blunt
wraps." He also searched a desk in defendant's bedroom and saw defendant's
driver's license. In a couch in the living room, the officer found six gallon-size
Ziploc bags filled with individual Ziploc bags containing green vegetation in the
area between the springs and the fabric bottom of the couch. He found a package
of green vegetation in the arm of the couch inside a gray winter hat.
A forensic scientist in the Drug Unit of the New Jersey State Police, Office
of Forensic Sciences tested the submitted samples of green vegetation and
concluded it was marijuana.
The State also presented an expert in forensic examination of mobile
devices who extracted text messages and photographs from defendant's cell
phone. The court admitted two photographs into evidence that showed
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defendant holding a bag of marijuana and two boxes of rubber-banded stacks of
bills.
The expert read the jury text messages from an individual named KP
beginning on December 4, 2019, and spanning multiple days, as well as text
messages from an individual named Bam starting on November 11, 2019.
Sergeant James Bruno was admitted as an expert witness in narcotics,
including coded language, drug dealer hierarchies, and packaging. He explained
coded language is "a word, a term, or a phrase that's used to discuss or explain
. . . an actual word." Bruno explained what street-, mid-, and high-level drug
dealers were, described the organization and record keeping that drug dealers
use for their money, and the types of packaging used by the different levels of
dealers. He also testified about the range of prices and profits of different
quantities of marijuana. Bruno described the terms associated with certain
narcotics, and then interpreted some of the terms used in the text messages
previously read to the jury.
Bruno stated the text messages revealed that Bam and KP were selling
marijuana to defendant. He explained that higher-level dealers would sell to
lower-level dealers and defendant was asking KP in the messages what the price
per pound of marijuana was.
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In one of defendant's three pre-trial motions to suppress evidence, heard
in September 2021, he stated the search was illegal because he possessed a
California document that permitted him to possess and cultivate medical
marijuana for medical purposes under the Compassionate Use Act of 1996, Cal.
Health & Safety Code § 11362.5. He contended that because the affidavit for
the search warrant was supported by the CI's observations and information
regarding selling and possessing marijuana, the affidavit was invalid because he
was not performing any illegal act. Therefore, the search was illegal, requiring
the suppression of the items seized during it.
In response, the assistant prosecutor advised that defendant was not
registered as a medical marijuana patient on the California cannabis website.
Furthermore, defendant was a resident of New Jersey, not California. In
addition, the State asserted any recent changes to New Jersey's marijuana laws
did not apply to this December 2019 search during which officers recovered
"nearly five pounds of marijuana," "distribution paraphernalia, multiple scales,
$43,000 in cash, and a loaded handgun."
The court denied the motion, stating defendant's arguments concerned an
affirmative defense—that he had a legitimate license applicable in New Jersey
at the time of these events to possess and use medical marijuana. Defendant had
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the burden of proof as to the affirmative defense. Therefore, the issue was left
to the jury for its determination.
After the State rested its case, defendant raised the issue of the California
medical marijuana card. The court advised defendant that if he discussed the
card with the jury, the court would charge the jury with the applicable New
Jersey law under the Compassionate Use Medical Marijuana Act (CUMMA),
N.J.S.A. 24:6I-1 to -16.
Thereafter, defendant re-called Bruno who testified that during a search
of defendant's car, he found a California marijuana card bearing defendant's
name and a May 21, 2020 expiration date. Bruno further stated that defendant
was a New Jersey resident in 2019, although he was not sure how long defendant
had lived in this state.
On July 25, 2022, during the testimony of the prosecutor's office's records
custodian, defendant requested a side bar, during which the following colloquy
took place:
[DEFENDANT]: Uh, one of the jurors are sleeping—
THE COURT: I'm sorry?
[DEFENDANT]: —one of the jurors are sleeping. I
know that—I've indicated to [stand-by counsel]. Uh, so
—
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[STAND-BY COUNSEL]: The person in the middle of
the front row of the jury box.
THE COURT: Well (indiscernible)—
[STAND-BY COUNSEL]: Doing my best.
THE COURT: —all right. Thank you.
Pertinent to this appeal, the court included the following jury instruction
in its charge:
In this case the defendant has put forth evidence to
assert that his marijuana possession was for medical
necessity, specifically, by introducing a California
marijuana card. A medical marijuana card, if valid, is
not an absolute defense to the charge in Count 2.
However, a card was allowed into evidence by this
[c]ourt as it may reflect on the defendant's intent in
possessing marijuana[,] if you find that he did, in fact,
possess marijuana.
For the defendant to establish a medical necessity
for the legal possession of marijuana, he must present
evidence that he is a qualified patient in New Jersey for
the issuance of a valid [CUMMA] [c]ard . . . .
A qualified patient is defined as a resident of the
State who has been authorized for the medical use of
cannabis by a healthcare practitioner. To be considered
a qualifying patient in New Jersey[,] the defendant
must:
1. Register with the New Jersey Cannabis
Regulatory Commission;
2. Supply the commission with:
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A. Documentation of the healthcare
practitioner's authorization for the patient or the
medical use of cannabis;
B. Proof of the application or renewal fee;
C. The name, home address[,] and date of
the patient, and date, uh, birth of the patient and
any applicable designated caregiver;
[D.] The name, address[,] and telephone
number of the patient's healthcare practitioner;
and
E. Up to one alternate address of the patient
for the delivery of medical cannabis.
. . . [I]f approved as a qualifying patient, the
commission will register a registration card which
includes the name, address[,] and date of birth of the
patient, the name of any designated caregiver, the
expiration date of the registration[,] and a photo
identification of the patient.
If the defendant is classified as a qualifying
patient and possesses a valid CUMMA card in another
[s]tate other than New Jersey, and then subsequently
moves to New Jersey, the other State CUMMA card is
considered valid in New Jersey for a period of up to six
months.
Upon relocating to New Jersey, the defendant
must provide proof of registration in and a valid photo
identification card issued by the other State or
jurisdiction. To legally obtain and possess medical
cannabis during the six-month period after relocation to
New Jersey, the defendant is required to provide written
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instructions for medical cannabis dispensation issued
by a New Jersey healthcare practitioner to a dispensary.
To retain a valid CUMMA card after six months
of relocation to New Jersey, . . . the defendant must
register as a qualifying patient in New Jersey as
detailed above. No individual shall be authorized to
acquire, possess, use or engage in other conduct in
connection with medical cannabis in New Jersey
pursuant to a medical cannabis registration from
another [s]tate or jurisdiction for more than six months
unless the individual registers with the New Jersey
CUMMA Commission as a qualifying patient.
....
A qualifying patient may be dispensed a
maximum of [thirty-six] ounces in one year. An
exception to this maximum amount exists if a patient is
terminally ill or is currently receiving hospice care
through a licensed hospice. A qualifying patient that
meets this exception may be dispensed an . . . unlimited
amount of medical cannabis. Qualifying patients that
do not meet this exception may petition the commission
for an exemption of the monthly limits and such
petition can be approved if the commission finds an
exemption is necessary to meet the patient's treatment
needs.
Prior to dispensation to a qualifying patient,
every batch of medical cannabis is tested by a
laboratory. A written report summarizing the results of
the testing shall be included in any packaging materials
for medical cannabis. A stamp will be affixed to each
package of medical cannabis prior to delivery to the
qualifying patient.
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To find that the defendant possessed the
marijuana for medical necessity, as . . . defendant has
proffered, you must find that he is, first, a qualified
patient. . . . .
[1.] [T]he defendant must register with the New
Jersey Cannabis Regulatory Commission; and
2. Supply the [C]ommission with:
A. Documentation of the healthcare
practitioner's authorization for the patient for the
medical use of cannabis;
B. Proof of the application or renewal fee;
C. The name, . . . home address, and date
of birth of the patient and any applicable
designated caregiver;
[D.] The name, address, telephone number
of the patient's healthcare practitioner; [and]
[E.] Up to one alternate . . . address for the
patient for delivery of the medical cannabis.
If approved as a qualifying patient, the
[C]ommission will register a registration card which
includes the name, address[,] and date of birth of the
patient, the name of a designated caregiver, the
expiration date of the registration[,] and a photo
identification of the patient.
If the defendant has demonstrated that he is a
qualified patient, the following requirements must also
be met to validly possess a CUMMA card:
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Possess a valid [CUMMA] registration card
issued by the New Jersey Cannabis . . . Regulatory
Commission;
Possess no more than [a] maximum year's . . .
medicinal marijuana supply, i.e., [thirty-six] ounces per
year, . . . possessing a valid CUMMA card unless the
defendant meets the exception for . . . possessing over
the maximum year's medical marijuana supply for
being terminally ill or . . . presently receiving hospice
care;
Provide[] proof of written reports that validate
the medical marijuana the defendant possesses [w]as
tested by a laboratory prior to dispensation; and
Provide[] proof that the marijuana possessed by
the defendant was dispensed to him, was packaged with
a stamp signifying that the marijuana [w]as medicinal
marijuana.
It is for you, the jury, as triers of the fact to
determine whether the defendant has met the
requirements under New Jersey law for the possession
of a valid New Jersey CUMMA card or a valid out-of-
state card.
If you find the defendant possessed a valid
medical marijuana card, you may use that evidence
along with the other evidence presented to determine
the defendant's intent in possessing the marijuana
purportedly found in his residence.
If you believe that the defendant has not
presented sufficient evidence of medical necessity for
the possession of medical marijuana, then you may
disregard the evidence.
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After the court concluded the jury instructions, it inquired at sidebar
whether there were any objections to the charge. The State and defendant's
stand-by counsel both replied "[n]o." Although defendant was present during
the sidebar conference, the transcript does not reflect any response to the
question.
As stated, defendant was found guilty of possession of marijuana with
intent to distribute, financial facilitation of a criminal act, and possession of a
firearm while committing a CDS offense. After a separate trial, defendant was
found guilty of a certain persons not to have weapons offense.
B.
Defendant was sentenced on August 25, 2022. Although the court found
defendant met the criteria of a persistent offender under N.J.S.A. 2C:44-3(a), it
denied the State's motion, because there was a gap between defendant's 2008,
2013, and current convictions, and defendant's present convictions required
consecutive sentences, meaning, he "fac[ed] a significant sentence."
The court found aggravating factors N.J.S.A. 2C:44-1(a)(3), the risk of re-
offending; (a)(6), the defendant's prior criminal record; and (a)(9), the need for
deterrence. The court did not find any mitigating factors. As a result, it found
the aggravating factors outweighed the mitigating factors.
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On count two, third-degree possession of marijuana with intent to
distribute, the court sentenced defendant to five years in prison with no period
of parole ineligibility. On count three, third-degree financial facilitation, the
court sentenced defendant to a five-year sentence to run consecutively to the
sentence imposed under count two. On count four, second-degree possession of
a firearm during a CDS offense, the court imposed a sentence of ten years in
prison, with a five-year period of parole ineligibility, to run consecutively to the
sentence under count two.
On count five, second-degree certain persons not to have weapons, the
court sentenced defendant to ten years to run concurrently to the sentence
imposed for count four, with a five-year period of parole ineligibility. The court
stated the overall sentence was twenty years with a five-year parole ineligibility
period.
The JOC reflected defendant was guilty of counts two, three, four, and
five. The JOC sentenced defendant to five years on count two; five years on
count three, to run consecutive to count two; ten years with a five-year parole
ineligibility period to run consecutive to counts two and three on count four; and
ten years with a five-year parole ineligibility period to run concurrently to the
sentences imposed on counts two, three, and four on count five.
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II.
On appeal, in a counselled brief, defendant raises the following arguments
for our consideration:
POINT I
DEFENDANT WAS DENIED HIS RIGHTS TO DUE
PROCESS AND TO PRESENT A DEFENSE BY A
JURY INSTRUCTION THAT UNFAIRLY
EVISCERATED HIS DEFENSE THAT HE
POSSESSED THE MARIJUANA FOR PERSONAL
USE, NOT WITH THE INTENT TO DISTRIBUTE.
POINT II
THE FAILURE OF THE TRIAL COURT TO VOIR
DIRE A SLEEPING JUROR DEPRIVED
DEFENDANT OF HIS RIGHT TO A FAIR AND
IMPARTIAL JURY, AND REQUIRES THE
REVERSAL OF THE CONVICTIONS.
POINT III
THE MATTER SHOULD BE REMANDED FOR
CORRECTION OF THE JUDGMENT OF
CONVICTION TO REFLECT THE ORAL
PRONOUNCEMENT OF SENTENCE OF A
FIFTEEN-YEAR TERM WITH FIVE YEARS OF
PAROLE INELIGIBILITY, NOT A TWENTY-YEAR
TERM WITH FIVE YEARS OF PAROLE
INELIGIBILITY
In a pro se supplemental brief, defendant presented the following nineteen
points for our consideration:
POINT 1 Conflict of Interest
POINT 2 Affiant[']s Affidavit
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POINT 3 Knock-and-Announce Search Warrant
Violation
POINT 4 Defendant[']s Medical Marijuana Card
POINT 5 Probable Cause[] Was Solely Based on the
Two Alleged CI Buys
POINT 6 Officer Confirms the CI Made a Phone Call
POINT 7 CDW
POINT 8 Lead Det[ective] D[anny] Corrales Fabricates
a Phone [Number] That Does Not Belong to [t]he
Defendant
POINT 9 Det. Corrales [T]estifies [T]hat [B]oth CI
Purchases [W]ere [S]ent to the Lab
POINT 10 Det. Corrales Commits Perjury
POINT 11 Probable Cause [W]as [N]ot Established
POINT 12 Omnibus Opinion Filed on 11/04/2021
POINT 13 Rules & Laws That Were Made [u]p [d]uring
Trial
POINT 14 Judge's Tactics [T]owards Defense
POINT 15 Prosecutor Erin Callahan [U]ses May 2019
Surveillance Testimony
POINT 16 Jurors & Jury Selection
POINT 17 Judge Stephen J. Taylor on Sentencing Day
POINT 18 Cross Examination of the Witnesses
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POINT [19] CI [W]as [N]ot Present at Trial
A.
We begin with the counselled arguments. Defendant contends he
introduced his California medical marijuana card to establish he could
permissibly possess large quantities of marijuana for personal use. His intent
was to disprove the State's charge of distribution.
Neither stand-by counsel nor defendant objected to the jury charge, even
when questioned directly by the court. Therefore, we review for plain error. We
will only reverse if the error "is of such a nature as to have been clearly capable
of producing an unjust result." R. 2:10-2.
Prior to defendant eliciting and presenting information about the
California card during his direct case, the court cautioned him it would instruct
the jury as to the particular requirements under New Jersey law to use an out-
of-state medical marijuana card. The court also stated it would advise the jury
the card was "not necessarily a defense to possession with intent to distribute,
that it was introduced as it may reflect on the defendant's intent only."
Therefore, the court charged the jury exactly what defendant sought to use
the card for during trial: to demonstrate he did not have an intent to distribute
marijuana because he had a valid marijuana card. The judge's instructions were
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appropriate given that many of the jurors may have been unfamiliar with
CUMMA or what was required to have a valid medical marijuana card in New
Jersey. See State v. Butler, 27 N.J. 560, 594-95 (1958). The instructions
detailed what the law required for a valid marijuana card and how a resident
with an out-of-state marijuana card could transfer their license to New Jersey.
As required, the court's instruction on this issue "explain[ed] to the jury
in an understandable fashion its function in relation to the legal issues involved."
State v. Green, 86 N.J. 281, 287 (1981). Defendant has not shown any "legal
impropriety in the charge prejudicially affecting the substantial rights of the
defendant and sufficiently grievous to justify notice by the reviewing court and
to convince the court that of itself the error possessed a clear capacity to bring
about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969).
We turn to defendant's allegations regarding the sleeping juror. He
contends the court should have placed its observations of the juror on the record
or questioned the juror when it was alerted to the situation. As stated, during
the testimony of a chain-of-custody witness, defendant informed the court he
thought a juror was sleeping.
In State v. Mohammed, 226 N.J. 71, 87-90 (2016), the Court detailed the
appropriate procedure a judge should follow when there is an allegation of an
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inattentive juror. The Court explained that when a party alerts the judge of an
inattentive juror, the judge should provide their own personal observations about
the juror's attentiveness on the record. Id. at 89. If the judge did not observe
the behavior, they should voir dire the juror to determine if they were inattentive.
Ibid. If the judge determines the juror was inattentive, but it was "an
inconsequential part of the trial," the judge has "broad discretion to determine
the corrective action that must be taken." Ibid. If the judge finds the juror was
inattentive, but it was "a consequential part of the trial," the judge must provide
the information the juror missed or if necessary, excuse the juror. Id. at 89-90.
In reviewing the judge's actions, we apply a harmful error standard and
consider whether the error was "clearly capable of producing an unjust result."
Id. at 89 (quoting R. 2:10-2). From our reading of the record, it appears the
court did not observe the inattentive juror. Therefore, under Mohammed, the
court should have examined the juror to determine what they missed, although
no one asked the court to do so. Ibid.Our review of the record also reveals this was not a critical portion of the
evidence. Defendant only asked the witness one question on cross-examination,
whether she checked evidence in and out. Furthermore, other witnesses also
testified regarding the chain of custody of the evidence and were subject to
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defendant's cross-examination. Therefore, it was harmless error not to further
inquire of the juror their level of attentiveness.
Defendant's final contention, through counsel, concerns his sentence. He
contends the JOC does not align with the court's oral sentence, regarding the
running of consecutive terms.
The court orally imposed a five-year sentence on count two, a consecutive
five-year sentence on count three, a term of ten-years on count four that was to
run consecutive to count two, and a ten-year term on count five to run
concurrently to the sentence on count four. The oral sentence totaled fifteen
years. However, the court stated "the overall sentence " is twenty years with a
mandatory five-year period of parole ineligibility. The JOC states the sentence
on count four runs consecutively to counts two and three, which results in a total
sentence of twenty years.
There is no discrepancy between the total sentence announced by the court
and the JOC. But there is a question of the court's intent regarding the
consecutive running of the sentences. Therefore, we find it appropriate to
remand solely for the court to clarify its intent. See State v. Murray, 338 N.J.
Super. 80, 91 (App. Div. 2001).
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B.
We turn then to defendant's contentions in his pro se supplemental brief. In
Points one, two, three, and eleven, defendant raises issues regarding the affidavit
submitted to support the application for a search warrant and the lack of probable
cause for the issuance of the warrant. Defendant also asserts the search warrant
was not executed during "standard business hours" and SERT did not wait the
required time before breaching the door.
Defendant raised these issues in his pre-trial motions and the court heard
extensive argument. On February 12, 2021, the court considered and denied
defendant's motion to suppress evidence in which he alleged there was a lack of
probable cause in the affidavit used to secure the search warrant and a failure to
adhere to the knock and announce rule.
In a comprehensive written opinion, the court found there was probable
cause for the search warrant because of the tips received from the CI, the
surveillance verified the CI's information, and the CI's controlled purchases of
marijuana from defendant. After detailing the investigation and corroboration
of the CI's information, the court concluded "there was ample evidence set forth
in the four corners of the affidavit" to support a finding of probable cause.
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The court also found the officers' actions in executing the search warrant
"were objectively reasonable under all the circumstances." It explained that the
officers were trained and briefed regarding the execution of search warrants, and
the officer's testimony about the events "was forthright, direct and credible in
all regards."
Our review of a motion to suppress is limited. State v. Ahmad, 246 N.J.
592, 609 (2021). The "trial court's factual findings in support of granting or
denying a motion to suppress must be upheld when '"those findings are
supported by sufficient credible evidence in the record."'" State v. A.M., 237
N.J. 384, 395 (2019) (quoting State v. S.S., 229 N.J. 360, 374 (2017)).
Similarly, our review of a search warrant is limited. State v. Chippero, 201 N.J.
14, 32-33 (2009). We "'pay substantial deference' to judicial findings of
probable cause in search warrant applications." State v. Andrews, 243 N.J. 447,
464 (2020) (quoting State v. Kasabucki, 52 N.J. 110, 117 (1968)).
In addition to evidence regarding the controlled buys, the judge issued the
search warrant as supported by the officer's affidavit, which was based on his
surveillance of defendant and defendant's residence, anonymous tips, and
information from the CI. We are satisfied, in considering the totality of the
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circumstances, that the court did not err in finding there was probable cause for
the issuance of the search warrant.
In addressing defendant's arguments regarding the knock and announce
procedure, the court noted the security camera footage showed the officers
complied with the "reasonable wait time" standard and that the officers knocked
twice, "announced 'police search warrant' multiple times," waited about thirty
seconds, and then breached the door. While acknowledging that the officers
may not have waited exactly thirty seconds, the court explained the "reasonable
wait time" standard is measured by the time it takes an individual to dispose of
drugs, not how long it takes them to reach the door.
The court found no merit in defendant's argument that the officers violated
the knock and announce rule when they knocked on the main door to the
residence, but not the door to his apartment. The court stated the officers did
not have to knock and announce on every door they encounter, but only the
external door to the residence. There was no evidence that the basement area
defendant occupied had multiple residences.
Before this court, defendant reiterates the arguments previously raised
before the trial court. We discern no reason to disturb the court's ruling denying
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the suppression motion as defendant has presented no evidence that law
enforcement did not comply with the knock and announce rule.
Points one, four, twelve, thirteen, fourteen, fifteen and seventeen set forth
defendant's allegations regarding the judge's misconduct and impartiality. We
need only briefly address these contentions as we find them lacking in merit.
In Point one, defendant contends the judge had a conflict of interest and
should not have considered the pretrial motions or presided over the trial
because he issued the search warrant. In addressing this argument, the court
cited to Rule 1:12-1, finding there were no grounds to recuse himself because
he had issued the search warrant. The judge noted this court's holding in State
v. Smith, 113 N.J. Super. 120, 137-38 (App. Div. 1971), that issuing a warrant
is ex parte and Rule 1:12-1(d) does not prevent a judge from hearing a case
because they have made a ruling on an issue in the pending action.
Point four concerns an evidential issue addressed by the court during trial.
We see no abuse of discretion in denying defendant's request to present a
discrete piece of evidence. Points twelve, thirteen, fourteen and seventeen
allege the court showed bias and prejudice against him. Our careful review of
the record shows no support for defendant's contentions. To the contrary, the
court was patient with defendant, providing guidance on the law and manner of
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presentation and extending great leeway to him in his self-representation. The
court permitted defendant to fully and fairly participate in the trial.
In Point fifteen, defendant asserts the State used surveillance testimony
that was barred by a prior court order, amounting to prosecutorial misconduct.
The order defendant relies on to support this argument is not contained within
the record. And we have discerned no evidence in the record that "was so
egregious that it deprived . . . defendant of a fair trial." State v. Frost, 158 N.J.
76, 83 (1999).
In Points six, eight, nine, ten and eighteen, defendant alleges certain
officers perjured themselves in their testimony. While there may have been
inconsistencies in some witnesses' testimony, there is no evidence to support the
allegations of perjury. See N.J.S.A. 2C:28-1.
In Point nineteen, defendant argues he attempted but was not allowed to
call the CI to testify, which resulted in a violation of his right to confront his
accuser. Defendant provides no citation to the record to support his argument
nor to any court ruling on the issue. Therefore, we cannot properly review the
contention.
Nevertheless, we note the following. N.J.R.E. 516 provides that
[a] witness has a privilege to refuse to disclose the
identity of a person who has furnished information
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purporting to disclose a violation of a provision of the
laws of this State . . . to a representative of the State
. . . , unless the judge finds that (a) the identity of the
person furnishing the information has already been
otherwise disclosed or (b) disclosure of [the person's]
identity is essential to assure a fair determination of the
issues.
In State v. Milligan, the Court instructed that when considering whether
to disclose the identity of a witness, the trial court should weigh "the public
interest in protecting the flow of information against the individual's right to
prepare his defense." 71 N.J. 373, 384 (1976) (quoting Roviaro v. United States,
353 U.S. 53, 62 (1957)).
Article I, Paragraph 10 of the New Jersey Constitution permits an accused
individual "to be confronted with the witnesses against him." As a result, a court
is not allowed to "admit[] testimony of a witness who directly or indirectly
provides information derived from a non-testifying witness that incriminates a
defendant at trial." State v. Weaver, 219 N.J. 131, 151 (2014).
In his appellate brief, defendant has not presented any evidence that the
CI's testimony was necessary to the presentation of his case or that the CI's
identity should have been disclosed under N.J.R.E. 516. In addition, defendant
has not presented any evidence that the trial court admitted incriminating
testimony of a non-testifying witness. See Weaver, 219 N.J. at 151. The
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testimony regarding the CI's controlled buys was only used in the affidavit
supporting the application for a search warrant, not as evidence before the jury.
To the extent we have not commented on them specifically, all other
points defendant raises on appeal lack "sufficient merit to warrant discussion in
a written opinion." R. 2:11-3(e)(2).
Affirmed. We remand solely for the trial court to conduct proceedings
regarding defendant's sentence as discussed above. We do not retain
jurisdiction.
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